English Legal System - Sources of Law Custom Equity and Treaties (Part 2)

Equitable Maxims

Equity has created maxims which had to be satisfied before equitable rules could be applied:

‘He who comes to equity must come with clean hands’

The claimant who themselves have been in the wrong in some way will not be granted an equitable remedy

‘He who seeks equity must do equity'

Anyone seeking equitable remedy must be prepared to act in fairness towards their opponent

‘Delay defeats equities’

Equitable remedies will not be available for a claimant who takes an unreasonably long time to bring an action. ‘Unreasonably long time’ is a matter of fact which is determined in accordance to the circumstances of the case

Equitable remedies are discretionary to the court which may choose to award a equitable remedy in addition to the common law remedies awarded as a right to a party winning the case

Equity has an important role in the development of the law of property and contract

It is capable of adapting and expanding in relation to meeting new needs and therefore creating law reform Treaties

The Vienna Convention on the Law of Treaties defines treaties in Article 2 (2) as:

[An] international agreement concluded between states in written form and governed by international law, whether embodied in a single document or in two or more related instruments and whatever its particular designation.

The importance of treaties is emphasised by Malanczuk (1997) who states that

Treaties are the major instrument of cooperation in international relations, and cooperation often involves a change in the relative positions of the states involved…Treaties therefore, are often an instrument of change.

Treaties become law in the UK after Parliament produces legislation to enact the treaty provisions, not like in many countries where treaties become part of domestic legislation as soon as the state signs the treaty

In relation to legal system in the UK the most important treaties are the treaties setting up the European Union, and the European Convention on Human Rights – incorporated into the domestic law by the Human Rights Act 1998.

Law Reform

As society changes, the law and the legal procedures also must adopt to these changes in order to maintain an effective legal system

In order to do this, there are number of ways of bringing about change – Judicial change and Reform by Parliament

Judicial change

Reform of law may be brought by case law, most recent example of this

R v R [1991] 1 AC 599

Case which challenged and successfully changed the very old totally outdated view in modern society that a husband having sexual intercourse with his wife without her consent could not be guilty of rape, view based on an assertion by the 18th century jurist Sir Matthew Hale who stated that ‘… by marrying a man, a woman consents to sexual intercourse with him, and may not retract that consent.”

A major reform like this by the courts is not very common, reasons for this put forward in ‘Law Reform in the United Kingdom’ by Norman Marsh

There is no systematic, state-funded process for bringing points of law in need of reform to the higher courts. The courts can only deal with such points as they arise in the cases before them, and this depends on the parties involved having sufficient finance, determination and interest to take their case up through the courts. Consequently, judge-made reform proceeds not on the basis of which areas of law need changes most, but on a haphazard presentation of cases.

Secondly, judges have to decide cases on the basis of the way the issues are presented to them by the parties concerned. They cannot commission research, or consult with interested bodies to find out the possible effects of a decision on individuals and organizations other than those in the case before them – yet their decision will apply to further cases.

Judges have to recognise the doctrine of precedent, and for much of the time this prohibits any really radical reforms.

Marsh’s also argues that reforming decisions by judges have the potential to be unjust to the losing party. Law reforms made by the Parliament are prospective, affecting something that happened before the judges decided what the law was. The more reformatory such a decision is, the less the likelihood that the losing party could have aided by the law, even if they wanted to.

Judges are not elected, and therefore feel they should not make decisions which change the law in areas of great social or moral controversy. They themselves impose limits on their ability to make major changes and will often point out to Parliament the need for it to make reforms, as happened in the Bland case concerning the Hillsborough stadium disaster victim

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